December is traditionally the month when most charitable donations are made.  December of 2005, in particular, might be expected to see even greater generosity due to this year’s devastating natural disasters – - on the Gulf Coast of the United States, in Mexico’s Yucatan Peninsula, in the region encompassing Northern Pakistan, Kashmir and India, and on the wide-ranging shores of the Indian Ocean.  Donors must be careful, however, particularly when choosing to direct humanitarian funds to the world’s “political hot spots,” to engage in due diligence regarding the specific donee relief organizations to which those funds are directed.   To do otherwise can subject the giver to the risk of running afoul of post-911 changes in federal law – - changes designed to criminalize, and thus prevent, actions which have the effect of providing “material support for terrorism.”

The laws at issue, Section 805 of the USA PATRIOT Act and Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004, define “material support” very broadly, and the consequences for violating them are severe, with non-citizens facing deportation, and both non-citizens and citizens facing criminal penalties up to 20 years in prison, in addition to civil asset forfeiture.  (The statutes also criminalize such support in the form of expert advice or assistance, which creates an entirely separate set of issues for individuals and organizations wishing to provide medical and other specialized services to disaster victims residing in geographical areas “governed,” or controlled, by groups listed as “Foreign Terrorist Organizations” by the US State Department, e.g., Sri Lanka’s Liberation Tigers of Tamil Elam, [LTTE].   This aspect of the laws, however, while problematic for individuals who would provide such medical advice or assistance, is beyond the technical scope of this article.)

These federal statutes, further, contain no exception for humanitarian assistance at all, except for “medicine and religious materials.” Although one might conclude that this exception would supply protection to donors who contribute to religious organizations, one would be wrong.  At least one such religious organization, Pakistan-based Markaz-ud-Dawa-wal-Irshad (MDI), is believed by the US State Department to be directly tied to Lashkar-e-Tayyiba (LT), (the State Department calls LT “MDI’s armed wing”), and the latter bears the State Department’s “Foreign Terrorist Organization” designation.  Presumably, therefore, contributions directed to MDI, even if designated for “medicine or religious materials” purposes, would place the contributor at risk of facing “material support of terrorism” charges.

In the case of MDI’s Lashkar-e-Tayyiba, identifying this risk is relatively easy, since the State Department’s list of groups designated as Foreign Terrorist Organizations can be accessed on the Internet, at http://www.state.gov/s/ct/rls/rpt/fto/2001/5258.htm.   More complicated, however, is the task of insuring that donations intended for humanitarian purposes, when provided to one’s local church or mosque, do not end up going to terror groups which are not on the State Department’s list.  In at least one case, the U.S. Department of Justice has succeeded in winning a deportation order under these “material support” laws, under circumstances where the person prosecuted was alleged to have given food and shelter to people that belonged to “a terrorist organization,” but one that was not on the State Department’s list. ¹

Moreover, this already very serious dilemma will soon become worse.  Under provisions of another, just passed federal law, the so-called “REAL ID Act,” the definition of what constitutes a “terrorist organization” was expanded, so that purely humanitarian groups that provide material support to designated terrorist organizations will themselves be defined as terrorist organizations.   With such an extremely broad definition of what constitutes a terrorist organization, it is conceivable that prosecuting authorities may now attach this label even to groups that engage in absolutely no violent activities of any kind.

While the US Congress, in a law passed last year, ²  attempted to provide greater protection to individuals who do not actually intend to provide material support to terrorism, this amendment may not provide sufficiently broad protection under these new circumstances, (i.e., where even such non-violent humanitarian groups can be deemed terrorist organizations).  In terms of the intent required for prosecuting “material support for terrorism,” this 2004 enactment provides that the government must prove that assistance was given knowing that the organization had been designated as a “foreign terrorist organization,” or that the organization had been involved international terrorism. Arguably, had the Congress wished to effectively immunize charitable giving that was intended, in good faith, to further exclusively humanitarian needs, it could have required that the government, in order to prosecute individuals for material support for terrorism, would have to prove that the person actually intended to further terrorist activity when they provided the assistance. ³“>http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=18200&c=206]

With such an expansive definition of what constitutes a terrorist organization, and with such vague requirements concerning the issue of an individual’s intent to provide material support for such organizations, must one forego altruistic urges altogether, in the face of daily headlines concerning extensive humanitarian needs in places like Sri Lanka and Kashmir?  Certainly, that was not the intended result of the various federal laws discussed above, and it would be a shame to simply turn one’s back on these humanitarian needs out of fear of prosecution.  (Be assured, as well, that such a response is not being counseled here.)

What is being strongly suggested, however, is that, when responding to the urge to make charitable contributions that will benefit disaster victims in places like these, one needs to be careful to protect oneself against any future allegation that he or she “didn’t do their homework” before donating.

While there is, finally, also no intent here to identify or promote “safe charities” (think Red Cross, and Red Crescent) in this context, the point to be made is that, unless one chooses to restrict charitable assistance to such humanitarian relief agencies as may be listed (and sometimes “rated”) by websites like “Islamic Charities,” http://www.muhajabah.com/charity.htm, it is impossible to overemphasize the advisability of engaging in some independent research before donating to less well known organizations.   Following such advice should, at a minium, provide the giver with that priceless commodity, peace of mind.

Glenn Michael Simmington, Esq., of Cline, Cline & Griffin, specializing in criminal defense, medical malpractice defense, and constitutional litigation.